Meyer v. Director of Revenue

• Decision Date: 05 December 2000
• Citation: 34 S.W.3d 230
• Parties: (Mo.App. E.D. 2000) Steven C. Meyer, Respondent, v. Director of Revenue, Appellant ED77411
• Court: Missouri Court of Appeals

34 S.W.3d 230 (Mo.App. E.D. 2000)

Steven C. Meyer, Respondent, v. Director of Revenue, Appellant

ED77411

Missouri Court of Appeals Eastern District

12/05/2000

Appeal From: Circuit Court of Gasconade County, Hon. John Berkemeyer

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Steven P. Kuenzel

Opinion Summary: The Director of Revenue appeals the circuit court's judgment, after a trial de novo, setting aside the Director's suspension of the driving privileges of Steven C. Meyer for driving while intoxicated.

Division One holds: Even viewing the evidence in a light most favorable to the driver, the driver's expert witness testimony and other evidence was insufficient as a matter of law to rebut the Director's prima facie case that the driver was driving at a time when his blood alcohol concentration was at least .10% by weight.

Richard B. Teitelman, Judge

The Director of Revenue (Director) suspended the driving privileges of Steven C. Meyer¹ (Driver) following his arrest for driving while intoxicated. Director appeals the circuit court's judgment, after a trial de novo, setting aside Director's suspension of Driver's privileges. On appeal Director argues that as a matter of law Driver's evidence was insufficient to rebut Director's prima facie case. We reverse and remand.

FACTS

At 12:57 a.m. on March 9, 1999, a Missouri State Highway Patrol officer stopped Driver's vehicle on Missouri Route 100 for driving over the centerline. When Driver got out of his vehicle and moved toward the officer's vehicle, he swayed unsteadily as he walked and had an odor of alcohol on his breath. After Driver failed several field sobriety tests the officer arrested him for driving while intoxicated and transported him to the police station in Hermann, Missouri for a breath test. The breath test was administered to Driver at 2:16 a.m. using a "BAC DataMaster" machine. The test result indicated Driver had a blood alcohol concentration of .111%. Acting pursuant to section 302.505 RSMo,² Director suspended Driver's license for driving with a blood alcohol concentration of at least .10%.

Driver filed a petition for de novo review of the Director's action pursuant to section 302.535. At the trial de novo Director presented documentary evidence stipulated to by Driver, and Driver presented evidence including his own testimony and that of Dr. Terry Martinez, an expert witness in the field of pharmacology and toxicology. Following trial the court rendered a judgment finding that although Director had made a prima facie case as to both required elements, the prima facie case was rebutted by the "unrefuted" testimony of Driver's expert showing that Driver "did not equal or exceed a blood alcohol content of .10% at the time of arrest or operation of the motor vehicle." Accordingly, the trial court set aside Director's suspension of Driver's license and ordered that his driving privileges be reinstated. This appeal follows.

DISCUSSION

In his sole point on appeal, Director asserts that the trial court erred in setting aside the suspension because the court's decision was a misapplication of law and against the weight of evidence, in that (1) the Director proved that Driver's blood alcohol content was at least .10%, and (2) Driver failed to present sufficient evidence to establish that his blood alcohol content was below .10% when he was driving.³

Our review is governed by the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless the trial court erroneously declares or applies the law. Wisdom v. Director of Revenue, 988 S.W.2d 127, 129 (Mo. App. S.D. 1999).

Under section 302.505, the Director makes a prima facie case for suspension of a driver's license by demonstrating, by a preponderance of the evidence, that (1) the driver was arrested upon probable cause to believe he was driving while intoxicated, and (2) the driver had been driving at a time when his blood alcohol concentration was at least .10% by weight. Smith v. Director of Revenue, 13 S.W.2d 700, 705 (Mo. App. W.D. 2000); Rhodes v. Director of Revenue, 994 S.W.2d 597, 598 (Mo. App. S.D. 1999); Wisdom v. Director of Revenue, 988 S.W.2d at 129. Since the trial court found that Director had made a prima facie case as to both elements but that Driver had rebutted Director's case as to the second element, only the second element is at issue in this appeal.

A prima facie case is made on the second element if Director establishes by credible and competent evidence that proper chemical analysis showed a driver's blood alcohol concentration was .10% or more by weight. Rhodes v. Director of Revenue, 994 S.W.2d at 599. Here, the Director's evidence, to which Driver stipulated,⁴ showed that the BAC DataMaster analyzed Driver's breath sample to determine his blood alcohol concentration, that the Datamaster was a machine approved by the Department of Health, that the officer who administered the test held a valid permit to do so, and that the test was administered in a manner that followed the approved methods and techniques of the Department of Health. Once Director has presented such a prima facie case, the burden then shifts to the motor vehicle operator to establish by a preponderance of the evidence that his blood alcohol concentration was less than .10% at the time he was driving. Rhodes v. Director of Revenue, 994 S.W.2d at 599.

In the case at bar, Driver admitted to having consumed a rather prodigious quantity and variety of alcoholic libations in the hours preceding his arrest. He testified that he drank four beers between approximately 3:30 and 5:30 p.m. He stated that he then went home and prepared a large dinner for a group of friends and guests who were coming over to his house that evening. From approximately 7:30 p.m. until 10:00 p.m., he testified, in addition to having dinner and socializing with his house guests, he consumed eight "highball" drinks consisting of 7-Up and whiskey. He stated he then spent slightly over an hour washing pots, pans and dishes in the kitchen, during which time he did not drink. He and his girlfriend then spent approximately an hour relaxing in the hot tub with their last remaining houseguest, during which time he consumed a third of a bottle of wine. A little after 12:30 a.m., Driver testified, he decided to drive the guest to her home in Hermann, Missouri. Shortly before leaving his house to drive the guest home, Driver made himself a very large drink of bourbon and coke to take on the road. He testified that he filled a container the size of "the biggest cup McDonald's has" full of bourbon and coke, and that he consumed approximately one fourth of the contents of the cup sometime before leaving the house. Driver and his guest then left the house with Driver at the wheel, and Driver's vehicle proceeded several miles before being observed and stopped by the Highway Patrol officer.

Additionally, Driver testified at trial that he had a problem with high blood pressure. He stated that he had been taking medication and seeing his doctor for the problem for five years. He indicated that although he had seen his doctor numerous times over the years and taken various combinations of prescribed medications in an effort to control his blood pressure, it nevertheless was not until the last time he had seen his doctor---just one month prior to trial---that he felt he "finally was on the right track" in getting his blood pressure under control. He answered affirmatively when asked, on direct examination, whether at the time of his D.W.I. arrest he was "still struggling to find some combination of medications that would work" to alleviate his high blood pressure.

Driver also presented the expert witness testimony of Dr. Terry Martinez, who has a doctorate degree in pharmacology. Based on four factors, Dr. Martinez offered the opinion that Driver's blood alcohol content at the time of arrest was probably no more than .09%. For the reasons discussed more fully below, we conclude that the factors cited and relied on by Dr. Martinez, whether taken separately or cumulatively, do not constitute substantial evidence sufficient to rebut the Director's prima facie case.

(1) Breath Analyzer Margin of Error

Dr. Martinez testified that breathalyzers of the type used in this case have a margin of error of plus or minus 15%. He explained that this was due to the fact that the machine's software is based on a breath-to-blood ratio of 2,100 to 1---that is, an assumption that every 2,100 milliliters of lower alveolar breath will produce as much alcohol as would be in one milliliter of the person's blood.⁵ As Dr. Martinez explained, the 2,100 to 1 ratio is only a statistical average, and the actual breath-to-blood ratio varies somewhat from person to person. However, he testified, the vast majority of persons fall into a range of "about plus or minus 15%" of 2,100 to 1; hence, the claimed margin of error for the machine.

We have visited this question before. In Green v. Director of Revenue, 961 S.W.2d 936 (Mo. App. E.D. 1998), another case in which Dr. Martinez testified, the argument was made that the breath test result was unreliable due to the breath analyzer machine's margin of error. In squarely rejecting that argument, this court stated:

Section 302.505 requires that a person's BAC be .10% or more to suspend or revoke the person's license for driving while intoxicated. It does not require the test result to pass the threshold alcohol limit of .10% within the .005% [sic] margin of error. [citation omitted.] Dr. Martinez's testimony as to the DataMaster's margin of error was not substantial evidence sufficient to rebut the Director's prima facie case.

Green v. Director of Revenue, 961 S.W.2d at 940. (emphasis added) We note too that a number of other courts have...